25 Sep

Section 24: Mistake of Fact and Consent in Rape Cases

Recently, there has been a lot of media attention on Section 24 of the Queensland Criminal Code, especially when talking about criminal allegations of rape.

So what is Section 24?

Known as the Mistake excuse,  Section 24 states that a person who has a mistaken honest and reasonable belief may not be criminally responsible.

The above explanation is a simplification of the provision:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.“

Does that mean if someone uses Section 24, they can’t be convicted?

If the Court is completely satisfied with Section 24 Mistake, they are then to consider the lawfulness of the defendant’s actions if the mistaken belief turned out to be correct.

How is Mistake relevant to allegations of consent and rape?

In a small number of rape cases, a defendant’s legal team submits that their client relied upon an honest and reasonable belief that the complainant provided consent to have lawful sex with the accused.

This is not an automatic defence and is difficult to establish. A jury must be convinced on the balance of probabilities that the defendant believed there to be established consent, and that this belief was both honest, and reasonable.

As the fact-finders in a trial, a jury is asked to decide whether, given the facts before the Court, a reasonable person would have an honest belief that they had consent to engage in sexual intercourse in the same circumstances.

What is the legal definition of consent?

Without getting into too much detail, consent is defined in criminal law as “consent freely and voluntarily given by a person with cognitive capacity to give consent.”

I’ve heard that being drunk gives a defendant an excuse to avoid conviction.

This is false. Intoxication may affect how a person ‘honestly’ believes something to be true, but it does not affect the reasonableness of the belief. As the Queensland Court of Appeal stated in the case of Hopper, “if the [accused]’s belief that the complainant was consenting was not capable of being considered reasonable, then it could not affect the verdict of the case.”

Are the laws going to change?

While Gatenby Criminal Lawyers believe in access to justice for all parties, we welcome open discussion about the laws but are confident that the longstanding Section 24 Mistake provision adequately serves justice for Queenslanders and will remain in our Criminal Code.

About the Author: Blair Carey

About the Author: Blair Carey

Blair Carey is a Criminal Law Clerk at Gatenby Criminal Lawyers.  He regularly researches new laws and their potential impact for our clients. Blair assists Michael Gatenby and our expert solicitors with providing the best advice on all related matters.